1.1 SyncSmart Data Processing Agreement represents an addendum to the Terms of Service Agreement. SyncSmart’s main service is processing the data provided by our clients on their behalf. Under the European Union General Data Protection Regulation (GDPR), Lynton has a position of a ‘Processor’ and SyncSmart’s clients have a position of a ‘Controller’ regarding the personal data provided by SyncSmart’s clients.
1.2 Data Processing Agreement represents an integral part of the Terms of Service Agreement.
2.1 The following definitions explain some of the terminology and abbreviations used throughout this addendum to the Terms of Service Agreement:
‘DPA’ refers to this Data Processing Agreement.
‘Terms’ refers to the Terms of Service Agreement.
‘Processor’ refers to Lynton LLC.
‘Controller’ refers to the signature party of the Terms.
‘Processing’ refers to any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
‘Data’ refers to information provided by Controller to the Processor relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
‘Data Subject’ refers to an identified or identifiable natural person to whom Data relates.
‘Data Breach’ refers to a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Data transmitted, stored or otherwise processed
3.1 Processor undertakes to process all Data in accordance with GDPR and other applicable laws, statutes and regulations.
3.2 Processor may process the Data only in accordance with the Controller’s documented instructions. Instructions referred to herein are incorporated in the Terms or may be contained within Statement of Work or another written document concluded or exchanged between the Controller and the Processor.
3.3 During the term of this DPA Controller shall remain the owner of the Data transferred to the Processor. Nothing in this DPA shall be understood to transfer the ownership of the Data to the Processor or any other Third-Party.
3.4 Controller warrants that the Data is obtained in accordance with the applicable laws, statutes and regulations and that Processing which Controller requests does not violate any applicable law, statute or regulation.
3.5 Data may be processed within the duration of this DPA.
4.1 The Processor shall ensure that all employees, contractors, and other persons operating under the authority of the Processor are bound by a strict confidentiality agreement prior to providing them with an access to the Data.
4.2 The Processor shall take steps to ensure that any person acting under the authority of the Processor who has access to the Data does not process them except on instructions from the Controller.
5.1 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of Data Subjects, the Processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
5.2 In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the Data transmitted, stored or otherwise processed.
6.1 The Processor shall not engage another processor without prior specific or general written authorization of the Controller. In the case of general written authorization, the Processor shall inform the Controller of any intended changes concerning the addition or replacement of other processors, thereby giving the Controller the opportunity to object to such changes. The Controller may object to such changes in writing within fifteen (15) days from receipt of the notice on changes.
6.2 Where the Processor engages another processor for carrying out specific processing activities on behalf of the Controller, the same Data protection obligations as set out in this DPA shall be imposed on that other processor by way of a contract or other legal act, providing sufficient guarantees to implement appropriate technical and organizational measures in such a manner that the processing will meet the requirements of the applicable laws, statutes and regulations. Where that other processor fails to fulfill its Data protection obligations, the Processor shall remain fully liable to the Controller for the performance of that other processor’s obligations.
7.1 Taking into account the nature of the processing, the Processor shall assist the Controller by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of the Controller’s obligations, as reasonably understood by the Controller, to respond to requests to exercise Data Subject rights under the GDPR.
7.2 The Processor shall:
8.1 The Processor shall notify the Controller without undue delay after becoming aware of a Data Breach affecting the Data, providing the Controller with sufficient information to allow the Controller to meet any obligations to report or inform authorized authorities and Data Subjects where necessary of the Data Breach.
8.2 The Processor shall co-operate with the Controller and take such reasonable commercial steps as are directed by the Controller to assist in the investigation, mitigation and remediation of each such Data Breach.
9.1 The Processor shall provide reasonable assistance to the Controller with any data protection impact assessments, and prior consultations with competent data privacy authorities, which the Controller reasonably considers to be required the GDPR or equivalent provisions of any other applicable law, in each case solely in relation to processing of the Data by, and considering the nature of the processing and information available to, the Processor.
10.1 Subject to sections 10.2 and 10.3 the Processor and each Sub-Processor if any shall promptly and in any event within thirty (30) days of the date of cessation of any services involving the processing of the Data (the "Cessation Date"), delete and procure the deletion of all copies of those Data.
10.2 Subject to section 10.3, the Controller may in its absolute discretion by written notice to the Processor within seven (7) days of the Cessation Date require Processor and each Sub-Processor if any to return a complete copy of all Data to the Controller by secure file transfer in such format as is reasonably notified by the Controller to the Processor; and
10.3 The Processor may retain the Data to the extent required by applicable laws and only to the extent and for such period as required by applicable laws and always provided that the Processor ensures the confidentiality of all such Data and ensures that such Data is only processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.
10.4 The Processor shall provide written certification to the Controller that it the Processor fully complied with this section 10 within sixty (60) days of the Cessation Date.
11.1 Subject to provisions of this article 11 the Processor shall make available to the Controller on request all information necessary to demonstrate compliance with this DPA, and shall allow for and contribute to audits, including inspections, by the Controller or an auditor mandated by the Controller in relation to the processing of the Data.
11.2 Information and audit rights of the Controller only arise under section 11.1 to the extent that the Terms do not otherwise give them information and audit rights meeting the relevant requirements of the GDPR.
12.1 Any matter that is not regulated by this DPA shall be governed by the Terms or any Statement of Work or Order concluded or exchanged between the parties to this DPA.
12.2 If any part of this DPA is found to be invalid, illegal or unenforceable in any respect, it will not affect the validity or enforceability of the remainder of the Terms.
12.3 Any failure to exercise or enforce any right or the provision of this DPA shall not constitute a waiver of such right or provision.
12.4 The section titles in the DPA are for convenience only and have no legal or contractual effect.